Abandoning the obsessive concentration on increasing prison capacity will allow the government to restructure justice system

What strikes you most about the new justice policy outlined in the coalition programme for government is the absence of rhetoric. The new watchwords are moderation, common sense and effectiveness. As an example: everyone knows that drugs and drink fuel crime and antisocial behaviour – so let's deal with addictions and binge-drinking in a way that reduces harm and cuts costs. The coalition government appears to be taking the opportunity to break with the failed legacy of vacuous prison-building and instead concentrate on what works in justice policy.

When the new justice secretary, Kenneth Clarke, was last in charge of prisons and penal policy, as home secretary, the average prison population in England and Wales (1992–1993) was 44,628. That figure now stands at over 85,000 – a number Clarke described after his appointment as "extraordinarily high". The political arms race over the criminal justice policy indulged in by successive Conservative and Labour administrations over the past two decades has seen the UK prison population grow from average to the highest in western Europe. As outlined in the Prison Reform Trust briefing launched this week, the social and economic costs of our addiction to custody have been immense.

In the current climate it would be a form of economic madness to allow the prison population to continue to spiral out of control. Each new prison place costs £170,000 to build and maintain, and the cost per prisoner per year is £45,000. Total prison expenditure increased from £2.843bn in 1995 to £4.325bn in 2006. Despite its exorbitant cost, prison has a poor record for reducing reoffending – 49% of adults are reconvicted within one year of being released, and for those serving sentences of less than 12 months this increases to 61%. The National Audit Office estimates that reoffending by all recent ex-prisoners costs the taxpayer between £9.5bn and £13bn a year.

The coalition can draw on lessons from abroad where justice reinvestment and prisoner re-entry programmes, driven by economic necessity in many states in America, have had considerable success at reducing crime and rates of reoffending. Closer to home, restorative justice with young people in Northern Ireland has delivered a reduction in youth crime, a drop in child custody and a 90% victim satisfaction rate. Integrated offender management schemes piloted in parts of England and Wales have achieved impressive results and are waiting to be rolled out nationally.

A breathing space from obsessive concentration on increasing prison capacity at all costs would give the government time to restructure the system so that local authorities, voluntary organisations, and police and probation services work more closely together to develop community solutions to crime that inspire public and judicial confidence.

A moratorium – a proposal welcomed by the Ministry of Justice as "timely and interesting" – would also allow time for the coalition partners to capitalise on the considerable areas of agreement between them on justice policy and, where there are differences, resolve them in a rational manner. In the Liberal Democrat and Conservative election manifestos there was broad consensus on investing in getting children out of trouble and nipping youth crime in the bud, diverting addicts and people who are mentally ill into effective treatment and, at the other end of the spectrum, informing and supporting victims, transforming prisoner rehabilitation and cutting reoffending on release.

The new justice policy fuses these plans and, although moderate in tone, could deliver the prize of increasing public safety while at the same time reducing the cost burden imposed by excessive use of custody.

A review of sentencing could be useful. The glut of legislation, raft of new offences and mandatory penalties and overall growth in the punishment industry all need unpicking. New ministers will need to examine the explosion in indeterminate sentencing – which has increased from 3,000 indeterminate sentences in 1992 to 12,822 in March 2010. The freedom bill will be an opportunity to review the civil-liberty crushing IPP sentence, which has led to thousands of people being held in jail long after their tariff has expired. It will be important, too, to look at the high number of recalls for breach of license and any unnecessary use of custodial remand.

As Alan Travis highlights in the Guardian, in the past the new justice secretary has been highly critical of the unchecked expansion of the prison population. In a debate on prison policy in the House of Commons in June 2007, Clarke called for "a change of culture in which the platitudes about community sentences and making prison only for those who need it are turned into reality by returning proper discretion to the courts and ensuring that prisons are used only for violent, dangerous and recidivist criminals in conditions in which there is some hope that some of them will be rehabilitated". As a moderate prescription for reforming our overcrowded and underperforming prison system the new coalition government could do a lot worse.

Justice secretary Ken Clarke has been critical of the rise in prison numbers in recent years. Photograph: Geoff Caddick/AFP/Getty Images

Penal reformers are stepping up pressure on the Lib-Con coalition to halt the billion-pound prison-building programme, pointing out that in recent years the justice secretary, Ken Clarke, has repeatedly criticised the rise in prison numbers as unsustainable.

The future of the programme is a key policy flashpoint between the two coalition partners, and one of the main issues to be thrashed out before the detailed policy agreement between them is published in the next few weeks.

A Prison Reform Trust briefing published today says that when Clarke was last in charge of jails, as home secretary in 1993, the prison population stood at 44,628; it has now topped 85,000. Clarke told the Commons in June 2007 that over the previous 10 years four home secretaries had responded to media pressure on crime by "taking away discretion on sentencing from the courts" and almost doubling the prison population "without paying the slightest heed to the inevitable moment when they would hit the buffers and there was no accommodation". He said a change of culture was needed to ensure that discretion was given back to the courts to ensure that prison was used only for "violent, dangerous and recidivist criminals in conditions in which there was some hope that some of them will be rehabilitated".

The PRT also cites a Commons debate in March 2007 in which the now justice secretaryClarke warned that the '"fantastic rate" in the rise in the prison population was unsustainable and would lead to a "tremendous squeeze on spending in every other part of the criminal justice system". He also observed that the rapid rise in prison numbers was partly a result ofhome secretaries trying "desperately to get the right headlines in all the most popular rightwing newspapers".

The new coalition justice team, which includes Conservatives Nick Herbert and Crispin Blunt, is the ministerial team responsible for prisons and probation and inherits a prison-building programme that will increase the number of jail places from 85,000 now to 96,000 by 2014. The PRT says that this will give England and Wales an incarceration rate of 178 per 100,000 .

The penal reformers say there is broad agreement between the Lib Dem and Conservative manifestos in schemes to get children out of trouble, tackle youth crime early, divert addicts and mentally ill people away from the jail system and improve rehabilitation.

But there is a fundamental clash over sentencing and the prison building programme. David Cameron has called for longer sentences and wants to introduce automatic prison sentences for carrying a knife and to give magistrates the power to jail offenders for 12 instead of the current six months.

The Lib Dems, however, had promised to introduce a "presumption against short-term sentences of less than six months" and cancel the government's billion-pound prison building programme.

Juliet Lyon, the PRT's director, said: "As the new justice secretary has previously acknowledged, the current growth in prison numbers is unsustainable. A moratorium on prison building would be a first step in reversing the disastrous legacy of the past two decades which has seen the prison population almost double, while rates of reoffending have rocketed."

Monday, 17 May 2010

Press Release: 12 May 2010The Fear Factory: Law and Order – When will the cracks start to show?

As the dust begins to settle on a strange new political landscape, the release of the initial coalition agreement between the Liberal Democrats and Conservatives makes no mention of the clear differences in law and order policy between the two parties. The former were clear in their manifesto:· a presumption against short sentences of less than six months;· the cancellation of the prison building programme;· a more effective justice policy.

Two out of three of these policies run totally counter to the Conservatives policy and the Fear Factory Coalition calls on the government to clearly outline their plans for law and order. As Kenneth Clarke assumes the mantel of Minister for Justice we ask that he works with the Liberal Democrats for an effective long-term criminal justice policy. We also call on the Liberal Democrats to have the courage of their convictions and to stand fast to their election promises.

In the election debate Nick Clegg echoed his response to The Fear Factory film which inspired the Coalition:“I hope the Fear Factory exposes the tough talk fallacy that has led to the current crisis in the criminal justice system. Dragging young people through the criminal justice system for minor offences is a foolproof way of helping them to graduate to a more serious life of crime.”

Chris Huhne, then Home Affairs Spokesperson, was categorical in his agreement with The Fear Factory which he said: “Exposes our criminal justice crises with precision.” He promised that: “The Liberal Democrats will not peddle the politics of fear ... We will put criminal justice on an evidence-based footing by establishing a National Crime Reduction Agency to test properly what cuts crime.”

Dominic Grieve speaking in the film as Shadow Justice Secretary was equally clear in the lead up to the election that:“What I do want to do is to try and do some hard thinking about what works. To put in place systems which I hope will reduce crime in both short, medium and long term and implement them along the lines of what we've been discussing and I want to do that whilst at the time saying to the public that there are no quick fixes and any politician that goes out there and promises a quick fix is in fact deceiving people.”

Despite the embarrassing wrangling over the crime stats which led to a warning from Sir Michael Scholar, Chair of the UK Statistics Authority, that the Conservatives were ‘likely to mislead the public’, for once this was an election where there wasn’t too much ‘out toughing’ on crime.

With the media already putting pressure on the coalition government to make crime an issue it remains unclear as to whether ‘the fear factory’ will continue to rumble on unabated or finally be deemed ineffective, but whatever the outcome the growing Fear Factory Coalition - currently 55 members strong - will continue to campaign for an effective long-term criminal justice policy.

Wednesday, 12 May 2010

The Fear Factory has been screened at the MOJ, home office, DCSF, the Welsh assembly, and has been praised by politicians who have seen it. ePolitix.com speaks to the film-makers, Richard Symons and Joanna Natasegara.

For people who have never seen The Fear Factory, can you briefly explain the idea behind it?

RS

Essentially, the film explains why our criminal justice system is in crisis and attempts to correct the numerous misconceptions held by politicians, media and public. There has been a raft of reports and recommendations over the last few years, but no-one's ever taken a holistic view of the issues – in particular, the media's influence on policy-making – and perhaps the very heart of the matter, what do we actually want from our criminal justice system? It is interesting to see that the most recent report from the justice select committee came to exactly the same conclusion as the film on the key indicator of performance – re-offending rates. And at the moment, we are performing pretty badly.

Spirit Level makes a wide variety of films, why did you decide to investigate the nature of the criminal justice system?

RS

The problem with criminal justice issues is they are either very dry (and often contested) statistical data, or highly emotive individual cases. Neither of these are particularly useful for delivering compelling arguments to influence policy or educate people.

We were approached by a group of stakeholders who had seen our previous political documentary, The Ministry of Truth, and felt we had brought a very dry constitutional issue (Parliament's self-regulation) to life by trying to get MPs and ministers to support a bill making them legally accountable for deliberately misleading the public. It ended up being the BBC's highest-rated political documentary of that year. The stakeholders could certainly have gone a more traditional route and commissioned a report, but felt a film would give them a more usable tool – one they could show to policymakers as well as other stakeholders and perhaps most importantly, the public.

Ultimately I think we were drawn to the idea because it deals with issues as fundamental (and emotionally charged) as redemption and retribution. Do we want offenders to be rehabilitated and redeemed, or would we prefer to pay the price for their continued re-offending and incarceration? The focus on youth justice made the subject even more compelling – if you are an innocent at birth, where is the cut-off point? When can society say we no longer have a responsibility to set you on the straight and narrow? 16, 18, 35? Can you ever turn your back? That is as much of a moral as an economic question, and makes powerful viewing.

JN

There is often a lot of hypocrisy in the media when dealing with children as victims and offenders – the two are not mutually exclusive groups; more often than not they are actually closely linked. A child who has had a rough ride in some way and is a victim is more likely to be the offender of the future, yet the media loves to talk in absolutes – angels or demons.

You must have experienced mixed reactions to the film, but are most people surprised to hear that crime has actually fallen since 1997?

RS

Absolutely. I do not think we have ever made a film where the public had such strong but misinformed opinions. Having said that, we also found the main problem with public opinion was that no-one had ever talked the issues through. Start a conversation with, "What should the sentence be for murder?" and inevitably the response is, "Life. And 'life' should mean exactly that." It is only once you get a little further into it – the costs, rehabilitation etc. that people start to think it through and put the initial, emotional response to one side. We deliberately provoked an emotional response (and engagement) to begin with by introducing the viewer to some violent offenders, where your initial reaction is to hope they are not on the streets. Then we unpack the arguments and history. By the end of it you have met all the relevant players (victims, media, politicians, government, judges, NGOs), fully considered the issue and – hopefully – changed your mind.

JN

The public response on crime is quite like the public response to politicians – they can think their local area and local MP is okay, but that the rest of the country has gone to the dogs. It is an odd psychological paradox.

The shadow Secretary of State for Justice, Dominic Grieve, appeared in the film claiming that crime has definitely increased since 1997, which was proven to be factually wrong. Has he tried to retract this statement at any point?

RS

I am afraid not. Perhaps worse than that, we held the launch screening at the Empire, Leicester Square, with a Q&A session afterwards. The Conservatives pulled Dominic from the panel and were not able to offer a replacement – it looked pretty bad in front of 500 or so press, stakeholders, civil servants and government officials.

JN

The Conservatives have been consistent in their repetition of this fact, despite warnings from Michael Scholar [chairman of the UK Statistics Authority]. Their persistence with it indicates they have a particular agenda they are trying to put across to the public, and that to me is fear-mongering; using people's imaginations to frighten them into voting a certain way. It is not very helpful and it is a shame, because lots of the work done by Dominic Grieve and Iain Duncan Smith on youth justice has been quite positive.

In the film, Cherie Blair, chair of the English Commission on Prisons, says that prisons have a success rate of around 30 per cent (or a re-offending rate of 70 per cent). When setting out to make the film, did you think that it was this low?

RS

Frankly, before we made the film I had never even thought about re-offending rates, but very early on in the research, it became clear this was the key. I do not think I was surprised by how bad it was, I was more surprised that no-one had got a handle on this earlier. Here the media are as much to blame as politicians – had the press been attacking policy failures on re-offending rates, there is no question in my mind the parties and politicians would have responded. Instead we are stuck with a slanging match between 'soft' or 'tough' on crime – the word 'effective' is not in the vocabulary.

JN

I was surprised at the highest rate of reoffending for young men (90 per cent), because I could not understand why such a clear failure of purpose was not a national outrage, and why, if we know the system is so ineffective, we're committing millions of pounds to expanding it. The simple truth is we cannot afford to build more prisons or have more people become offenders or re-offenders. It costs a lot of money to fail this badly! But the papers clearly did not feel reoffending rates was a story, nor would many of them tolerate, be sympathetic, to spending money on more effective alternatives to custody.

Chris Roycroft-Davis, former executive editor of The Sun newspaper, says in the film he does not think newspapers have a duty to "educate, or inform". Were you at all shocked by this?

RS

Not at all – though this was almost certainly the biggest bone of contention at Spirit Level. There was a natural instinct to crucify Chris, but I was impressed by his honesty, and thought we would be kidding ourselves if we believed such a duty existed. Honesty will become a 'duty' only if the public stops buying a newspaper when it lies.

All credit to Chris though – he was prepared to defend himself at the Q&A session and was quite frank about the film changing his mind. Does that redeem a man who has been responsible for 20 years of headlines read by 10 million people a day? Things get harder to justify when you look at the principles/ethics of journalism laid out by the NUJ code for its members. I suspect if they ever tried to enforce them, there would be a significantly reduced membership.

JN

Initially I was both shocked and angered by Chris' statement – I had always believed (perhaps naively) that papers did profess to educate and lead. I felt, and to some extent still do think, that the newspapers' consumers are not thinking about the shareholders' bottom line when they read the stories. Nor do I think this statement fits well with a paper that is actively trying to have an effect on policy, and often succeeding. I actually think The Sun's campaigns on the Bulger case led the Labour Party, and was partially responsible for the rise in young people in custody since 1998. However, like Richard, I did enjoy Chris' honesty and openness. He has subsequently been a great asset and supporter of the project overall.

Did you find when making the film that politicians privately believe there is another option other than imprisoning the young, but publicly, crime-fighting rhetoric is what scores the most political points?

RS

In terms of youth justice, you are absolutely right. But rhetoric is one thing, and delivery another. Talk is cheap, legislation a little more expensive – but not that much more. The real deal is implementation, and that is where I suspect the differences kick in. Whether it is through a lack of interest, ability or funding, we will probably never know, but this government has been better at delivering its promises on building prisons than it has at delivering effective alternative options. In the film, even John Fassenfelt – deputy chair of the Magistrates' Association – was pretty damning of what has been delivered. When you ask the NGOs and offenders their opinion, the criticism was at another level altogether.

JN

We have always thought the public prefer politicians to tell more of the straight truth and explain the complicated bits. Very few other countries have such a problem with explaining sensible youth justice policies to the electorate, so I am convinced this is not an intractable problem. However, we could solve it much faster if the parties agreed not to point-score off each other on crime, not to use fear as an election tool or bandwagon on essentially anomalous, high-profile cases which are not indicative of a general pattern.

Do you think the backlash from the media is the only thing stopping politicians from a different approach to criminal justice, and youth justice in particular?

RS

As we point out in the film, the media are not elected to run the country. I think the real hindrance to reform is the politician's inability to lead on the issue. That has lost them the respect of a great many stakeholders they need to work with. Off the back of the film, a coalition of unprecedented expertise and experience was formed (some 47 NGOs) to lobby politicians for effective, as opposed to 'media-friendly' policies. If a dyed–in-the-wool newspaper man like Chris Roycroft-Davis had his opinion changed by the film, it seems beyond credibility that our elected representatives and government could not do the same thing over the last decade. I see that as a failing on their part and in particular, a failing in their capacity as representatives of the peoples' interests.

JN

I think politicians have got themselves stuck between each other and the media. Even if the press did not respond to an effective policy statement with a 'soft' headline, the opposing party might well do. This 'arms race' has got to stop before sensible, productive debate and outcomes can happen – though I note the Liberal Democrat manifesto promises on law and order are very similar to the conclusions of the film. Maybe it has been easier for them to be sensible on policy because they were not being so closely watched?

The film has already had an incredible impact, but do you think the best way of instigating change is for it to be aired on television?

RS

Not necessarily. We have had a tremendous amount of both 'official' and 'unofficial' screenings for government, the Home Office, MOJ, DCSF, NGOs and, earlier this week, the Welsh Assembly. That is a lot of policymakers. As a film-maker you always want your film to be seen by as large an audience as possible, but this was made with a very specific purpose in mind – to influence policy-change. As such, it was essential to make a balanced but compelling argument on a difficult, emotive subject with a counter-intuitive conclusion. If this film had been through the broadcast commissioning process, it would have become something very different. Broadcasters do not have the same stranglehold on reaching the public as they used to – the internet has changed the ground rules. That said, I have no doubt at some point we will make an edit for a broadcaster.

A coalition has been formed on the back of the film; what stage is this at and what are you hoping to achieve from it?

JN

The Nationwide Foundation went 'above and beyond' in supporting the resultant coalition, and we are delighted they have decided to continue funding its work for this year. There is a co-ordinator in place who will continue to work with coalition members on the goals they have set out.

RS

One of the ideas is to pool the coalition's expertise and use it to rebuff misleading media, statistics and politicians, by reproducing an article or policy statement online and having a group of experts post comments on it. You will effectively have an evidence-based response from credible individuals that can be used as a resource by media, politicians, stakeholders etc. to put forward an expert opinion.